Death with Dignity - Revisions to the existing legislation still required

The suicide criminalization provisions in the Criminal Code prior to recent changes were a breach of rights afforded us via Section 7 of the Charter of Rights and Freedoms; I submit that as the law is now written and administered charter rights are still being infringed upon. Section 7 has as its “pressing and substantial objective”, and or its sprit, choice. The presence of Section 7 in our Charter holds as equity some 400 years of blood and toil, this fact is under-considered and too often legislators and jurists alike allow things exterior to choice to come to bear on matters related to life, liberty and security of person. In relation to liberty the state holds two fundamental obligations, firstly, to protect the citizenry against coercion and secondly, to the extent possible, facilitate personal choice. There is no more beautiful collection of words, than life, liberty and security of person – this collection of words carries the promise of the emancipation and the full expression of the individual. In drafting legislation, Section 7 demands a pristine and unfettered contemplation of personal choice – specific to Death with Dignity legislation, this reality has the state's only function being the protection and advancement of a given individual’s wishes.

An individual moves through life, at some point, there comes to bear on that individual a circumstance that provokes them to decide that life as it is, is too onerous to continue with – this is a personal choice and the state has no place extending value judgements on the reason this choice is being made – the state is often excluded from the choice when an individual chooses to take their own life. Death with Dignity recognizes that taking one’s own life is exceedingly difficult and often results in unnecessary trauma for the individual and those around them. At the point, an individual chooses to seek assistance in dying, they approach a doctor, the doctor then has a choice, upon assessment of their patient’s circumstance, whether they are able to assist or not. These are two individual choices being made here, there can be no coercive application of state power over either individual to act or not act. It should never be the case that the government would make the choice to end a life – that choice only resides with the affected party, any state impediment or incentive would be a breach of Section 7.

It is at the juncture where there is an agreement between these two individuals that assistance in dying is warranted and they decide to act, that state’s role begins. The only role for the state at this juncture is to ensure that, a person choosing to end their own life has their wishes attended to, that their wishes are emanating from a sound mind and that the actions are absent any none state or state coercion. It is critical in the drafting of a law that one contemplates the law’s misapplication as much as its intended outcomes; people associated with protecting people with disabilities are demanding this of us. 

The mechanics of attending to imperatives and controls in this type of legislation must ensure that matters of law, lie with the judiciary and matters of medicine lie with medical personal. There must be an institution exterior to the actuation of assistance in dying, overseeing the process, that is why tailored participation of the courts is required.  The present protection mechanisms in this regard are too weak, they bear a concerning similarity to provisions in the British Columbia Mental Health Act related to involuntary detention, to understand why this is a concern, I refer the reader to the following reports.

Click Here to access the BC Ombudsperson Report 42

Click Here to view the BC Community Law Society Report

Click Here for a report I've prepared in relation to the BC Mental Health Act

Stephen Covey teaches us to begin with the end in mind, in the designing of legislation that manages this most consequential choice on the part of individuals, the end we desire demands that we focus, simply to; ensure the person has the capacity to make the choice, protect against coercion and other abuses and to facilitate choice. The Dali Lama teaches us that “ethics are the inextricable link between my desire for happiness and yours”, happiness must be attended to by each of us, when another’s choice brings us concern and said choice brings no harm to us, then we must choose the path of benign coexistence. Too often in drafting legislation of this kind, fear and things other than legal imperatives distort the making of the law – this is exponentially true in the case of Death with Dignity.

The right to the domain over mind and body is a long-held imperative in British / Canadian law and is the crux of the Carter decision. There exists in law related to medical treatment the “presumption of capacity” which functions in a similar way as the “presumption of innocence”. So, to revoke the right to the domain over mind and body, the state holds the burden of proving that a given individual is absent the mental capacity to make a choice. In the case of assistance in dying, the state must determine the individual has the mental capacity to make the choice to die. The determination of capacity is a legal determination informed by medical information, as opposed to, a medical determination made by medical personnel. Attending to the rights afforded us by section 7 are antecedent to all matters related to the administration of law, or, at least, they should be.

The reason why the assessment of capacity must remain with the judiciary is that an objective third party assesses mental capacity contextualized to statutory and common law imperatives. This protects against arbitrariness in medical practitioners’ actions, it also protects against gradual migration into systemic apathy or compliancy, as has occurred with the administration of BC Mental Health Act, and it better protects those with disabilities from ever being the subjects of the unsavoury application of resource triage.

There needs to be two paths to medically assisted dying, the first, the use of a prior directive and, the second, point of care access whereby the instructions of a patient who is determined to have capacity actuates treatment. Both these options must be in place – the absolute best option is a prior directive because the parameters of action are clearly defined in advance while capacity is clear – with the direction of an appointed committee the medical control then is that two doctors confirm to the court that the present condition of the patient is consistent with the directive, this choice then is filtered through the court, medical personnel and an appointed committee. Prior directives, the appointment of committees, complete medical oversight and court oversight ensure that the protection of the infirm, ensure extended and consistent vigilance over the system and most importantly, the avoidance of people prematurely accessing assisted dying to facility late-stage consent. The absence of prior directives and committees effects a continuing breach of section 7 rights due to the normal course of many diseases. In the case of point care solicitation for assisted dying, the legal (court) assessment of capacity must be determined, and the medical personnel must inform the decision but the execution of the treatment must effected by a specially designed warrant or other court order, with the entire process being overseen by an appointed committee.

The logistics associated with the aforementioned process’s implementation are quite simple. Ideally, there would be a national registry implemented that allowed people to register their prior directives. As events unfold that actuate the advance directive, medical personnel would access the registry and the appointed committee would be contacted and commence overseeing the balance of the process. When the actuation of treatment becomes apparent, the committee applies to the court for an order to proceed – the request would be a standardized form requesting the court order and it would be accompanied by reports from two medical doctors confirming that the condition of the patient was consistent with the prior directive. This process, in the absence of any descent, would likely be executed in much the same way as a bench order is now. If there were an objecting party, then this would trigger more developed court process in the form of a hearing before a Supreme Court Judge. In the instance of a prior directive, the choice for and the parameters for actuation are done under an established state of mental capacity.

In the case that an "at the point of care request" for assisted dying, that the legal assessment of mental capacity and the absence of coercion become a little more onerous to determine. If there is physical capacity by the patient to complete paperwork, the above procedure could be implemented – either with a state-appointed committee or a patient designated committee. The preferential action at his point would be a remote interface with the court, where there would an actual legal assessment of capacity by a judge – this would be facilitated by any of a number of technologies presently available.

It must be emphasized that judicial oversight is critical to prevent systemic decay or a slide to apathy whereby these processes become executed by route. Judicial oversight offers an opportunity for dispute resolution in the event of conflicting interpretation of a prior directive, or some other dispute between affected parties.  People will argue this is onerous, it is a worthy assertion, that the nature of the endeavour requires heightened vigilance. If the process is designed with practical imperatives in mind, the courts’ oversight will be streamlined and prompt.  

Some supporting case law for consideration. 

     Domain over One’s Mind and Body

 

1. It is a most fundamental right to hold domain over one’s mind and body. The long-standing common-law tradition, its linage and importance are summarized in Fleming v. Reid. “The right to determine what shall, or shall not, be done with one's own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law …”

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part IV

2. This right was clearly communicated in Carter as follows:

 

[67] The law has long protected patient autonomy in medical decision-making. In A.C. v . Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to direct the course of their own medical care (para. 40): it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee of liberty and security of the person (para. 100; see also R. v . Parker (2000), 49 O.R. (3d) 481 (C.A.)). As noted in Fleming v . Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision. It is this same principle that is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn or discontinued: see, e.g., Ciarlariello v . Schacter, [1993] 2 S.C.R. 119; Malette v . Shulman (1990), 72 O.R. (2d) 417 (C.A.); and Nancy B. v . Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Que. Sup. Ct.).

 

[68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is engaged “where state compulsions or prohibitions affect important and fundamental life choices”

 

(para. 49). In A.C., where the claimant sought to refuse a potentially lifesaving blood transfusion on religious grounds, Binnie J. noted that we may “instinctively recoil” from the decision to seek death because of our belief in the sanctity of human life (para. 219). But his response is equally relevant here: it is clear that anyone who seeks physician-assisted dying because they are suffering intolerably as a result of a grievous and irremediable medical condition “does so out of a deeply personal and fundamental belief about how they wish to live, or cease to live” (ibid.). The trial judge too described this as a decision that for some people is “very important to their sense of dignity and 9/2/2020 Carter v. Canada (Attorney General) - judge, too, described this as a decision that, for some people, is very important to their sense of dignity and personal integrity, that is consistent with their lifelong values and that reflects their life’s experience” (para. 1326). This is a decision that is rooted in their control over their bodily integrity; it represents their deeply personal response to serious pain and suffering. By denying them the opportunity to make that choice, the prohibition impinges on their liberty and security of the person. As noted above, s. 7 recognizes the value of life, but it also honours the role that autonomy and dignity play at the end of that life. We therefore conclude that ss. 241 Ž(b) and 14 Ž of the Criminal Code Ž, insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, infringe the rights to liberty and security of the person.

 

Presumption of Capacity & Guardianship

 

5. “The Court noted that under the Health Care Consent Act (Ontario) there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

Excerpt from Case Study of Starson v. Swayze.

6. “The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.”

Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 Page 2

7. In Fleming the court supported the notion of “the presumption of capacity” and capacity’s retention and displacement in much the same manner as Starson “Mentally competent" is defined in s. 1(g) as: ... having the ability to understand the subject-matter in respect of which consent is requested and able to appreciate the consequences of giving or withholding consent ...”.

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part

 

 This infographic is included to demonstrate how legislation can allow a circumstance of extreme abuse of civil rights. The use of medical opinion and medical personnel in the administration of legal concern is a very dangerous circumstance. What has transpired in British Columbia in relation to the BC Mental Health Act is grave enough, people's liberty is arrested absent access to fundamental law, they do, however, normally manage to survive. One would loath to witness such a devolution in the administration of law related to something as permanent as assistance in dying.